If prisoners could vote, they would vote at home, not in the prison town

by Peter Wagner, December 15, 2003

The Census counts prisoners as if they were residents of the prison town, but if prisoners could vote, they would vote at home. This isn’t just a matter of choice, it’s one of law.

Two states (Vermont and Maine) let prisoners vote and, until recently, two additional states (Utah and Massachusetts) did as well. Most prisoners didn’t vote, but when they did, each state required prisoners to vote not at the prison, but at home. An examination of how the four states required prisoners to vote at home is illustrative of how the question of prisoner residence should be treated for purposes of redistricting and representation.

The Vermont Secretary of State describes the procedure requiring prisoners to vote at home:

“2. Prisoners Register To Vote Where They Last Lived. A person in a correctional institution must register to vote in the last town in Vermont that the person resided in prior to incarceration. 17 V.S.A. §2121 and 2122(a). The statute provides that ‘a person can neither gain nor lose residency…while in a correctional institution.’ For example, if a person resided in Rutland, but is now incarcerated in Newport, the person must register to vote in Rutland. There is also a more specific provision in 28 V.S.A. §807 that states that a person cannot register to vote in the town where the correctional facility is located. While some attorneys consider this provision to be unconstitutional, it has not been challenged in court.”

Maine says that a correctional facility is not a residence:

“14. Persons incarcerated in correctional facilities. The residence of a person incarcerated in a correctional facility, as defined in Title 34-A, section 1001, or in a county jail does not include the municipality where a person is incarcerated unless the person had resided in that municipality prior to incarceration.

“A person incarcerated in a correctional facility may apply to register to vote in any municipality where that person has previously established a fixed and principal home to which the person intends to return.”

In Massachusetts, prisoners could vote until a constitutional amendment disenfranchised them in 2000. Prisoners were required to vote at home, except — at least through 1983 — in extremely limited circumstances prisoners could rebut the presumption that their residence was unchanged and prove that their new residence was at the prison. In a 1978 case, the Supreme Judicial Court upheld the town of Norfolk’s acceptance of local registration for only 2 of 621 prisoners in the town. (The law from 1983 to 2000 will be the subject of a future fact of the week.)

In Utah, until their disenfranchisement in 1998, prisoners were required to vote in the jurisdiction of their last residence. The Legislature created this requirement in 1981, after residents of Draper, Utah feared that prisoners could elect one of their own mayor of the newly incorporated rural prison town. As a result, longtime Utah prisoner Ray Dodge “had to list his voting address as an empty lot in Ogden where he once lived in a home with his mother before he was imprisoned in 1965. His mother died, the home was torn down and he has no ties to Ogden but the amended law requires him to vote in [Ogden].” Dodge’s situation was probably unique, but this one odd result was clearly preferable to pretending that thousands of prisoners were residents of the prison town.

If it made sense to require prisoners like Dodge to vote somewhere other than the prison, it also makes sense to count them somewhere other than the prison for purposes of redistricting.

Quotation sources:

Vermont: Vermont Attorney General Opinion, May 2003, #2, see also May 2001, #22.

Maine: Title 21-A, §112, p. 14.

Utah: Brian Maffly, Utah Cons Lose Their Liberty, Not Their Vote, Salt Lake Tribune, Apr. 7, 1997 p 1.